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Attorney Fees for Debtor’s Counsel in Chapter 13 Plan

Attorney Fees for Debtor’s Counsel in Chapter 13 Plan

Above means income debtors are required to use Form B-22C (Chapter 13 Calculation of Your Disposable Income which is part of a 2 part test) which effective December 1, 2015 will be  Form B122C-2.  Unlike trustee fees there is no deduction for attorney fees being paid in the plan on the form.   §1325(b)(1)(B) provides that a Chapter 13 plan should “provide that all of the debtor’s projected disposable income … will be applied to make payments to unsecured creditors under the plan.” 11 U.S.C. § 1325(b)(1)(B).

Section 1325(b)(1)(B) of the Bankruptcy Code provides in pertinent part that, if a trustee or an unsecured creditor objects to confirmation of a debtor’s Chapter 13 plan, the plan can be confirmed by the court only if it provides to pay the creditors in full or proposes that “all of the debtor’s projected disposable income … will be applied to make payments to unsecured creditors under the plan.” 11 U.S.C. § 1325(b)(1)(B).   Section 1325(b)(2) then defines “disposable income” as current monthly income received by the debtor less amounts “reasonably necessary to be expended.” See 11 U.S.C. § 1325(b)(1)(B).

Trustees across the country have been using this  provision to object to  Chapter 13 Plan fees for Debtor’s attorneys through the plan.   In re Hemker, No. 15-90023, 2015 WL 5262080 (Bankr. C.D. Ill. Sept. 8, 2015), the trustee argued that the amount shown from the B22C form must only go to general unsecured creditors, excluding any attorneys fees to be paid in the plan.  Further, Debtors’ attorney fees are excluded from the calculation under 11 U.S.C. § 707(b)(2)(A)(ii)(III), and thus the Debtors should not be allowed to use their disposable income to pay their attorney fees.  The Trustee based this argument on Ransom.  The Court rejected this argument as making an unfair  treatment between a below income debtor, who was allowed to pay  attorney fees through the plan and a above income  debtor who could not. A debtor’s attorney who has not taken a security interest in the debtor’s property is an unsecured creditor who may be paid from disposable income.

Apparently this case is part of a  nationwide trend to make bankruptcy filings more difficult for the Debtor and their counsel.   On October 6, 2015, the American Bar Institute  held a Webinar  “BAPCPA at 10”.  Attorney Caralyce M. Lassner of Acclaim Legal Services PLLC, Warren, Mich., one of the panelists, said in practice BAPCPA has been like using a backhoe to fix a crack in your sidewalk.  Lassner stated how impossible it is to   confirm a chapter 13 Plan without  major concessions from the debtors or creditors.  She also cited two case in the Eastern District of Michigan which attacked Debtor’s attorney fees.

In re Craig Maike, 15-20218-DOB (EDMI), Docket 25 (9/3/15)

In re Hammon, 2015 WL 4462179 (Bankr ED MI 7/21/15)

Professor Lois R. Lupica of the University of Maine School of Law said empirical studies have found no evidence of widespread abuse among consumer debtors.   In fact, Lupica said that under BAPCPA the cost of access to the bankruptcy system has increased significantly, which is keeping the poorest debtors from being able to file.

In the Middle District of Florida the Chapter 13 Trustees have interpreted Harris that when a  chapter 13 is dismissed or converted,  the check for the balance paid in less their fees,  goes to debtor c/o attorney for refund, however, no attorney  fees or adequate  protection  is paid after dismissal/conversion by the trustee.  The attorney must then try and get the debtor to pay the balance of their fees due under the retainer agreement.  ( If the  Debtor refiles bankruptcy within a year- would the trustee treat our fees as a preference? )

 

Length of Chapter 13 Plan

Length of Chapter 13 Plan

How long does a Chapter 13 plan last?

Typically, a Chapter 13 plan lasts from between 36 months to 60 months. The length of the plan depends on several factors: the amount of your average monthly gross income calculated over the six month period prior to the month of filing, the monthly amount of your disposable income, the amount and kind of debt that you have, and the value of your nonexempt property. If the historical average monthly gross income is over the state median you will be forced into a 60 month plan, unless you can pay 100% of your unsecured debt within a shorter period of time.

Debt Collection Calls

Debt Collection Calls

When creditors or debt collectors are attempting to collect a past-due debt. You may receive debt collection calls and voicemails in their attempts to collect debt. There are several rules ,that must be strictly followed if the creditor or debt collector is going to comply with both state (“FCCPA”) and federal (“FDCPA”) law.

Many creditor and debt collectors use technology (i.e., computers or software) to place these debt collection calls. Automatic Telephone Dialing Systems (ATDS) and Predictive Telephone Dialing Systems (PTDS) are used to place calls repeatedly to consumers until a call is answered. This can mean that you are receiving calls dozens if not hundreds of times a month until a creditor or debt collector reaches you and secure payment.  The Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. Section 227, restricts telephone solicitations (i.e., telemarketing) and the use of ATDS, and PTDS from placing or making telephone calls to consumers cellular telephones, as well as the use of  prerecorded voice messages, SMS text messages, and fax machines, in certain circumstances.

Under the Fair Debt Collection Practices Act (“FDCPA”), creditors are strictly prohibited from behaving in a way that can be classified as harassing. This includes calling debtors at all hours of the night, using offensive language, persistently communicating with a debtor at their place of work after being asked to desist and misrepresenting facts in any way.

If you have notified a creditor or  debt collector that you have hired an attorney for representation regarding your debts, the debt collector cannot call you to collect the debt. If it does, it is violating both the FCCPA and the FDCPA. You could be entitled to up to $2,000.00 statutory damages plus reasonable attorney fees and costs. If you have suffered from the abuse of a harassing creditor, you may have rights. Have the following taken place:

  1. Creditor/Debt Collector has notice of attorney representation regarding the debt;
  2. Creditor/Debt Collector Calls your cell phone in an attempt to collect the debt and has been told not to;
  3. Creditor/Debt Collector uses an Automatic Telephone Dialing System,

If a creditor or debt collector leaves a voicemail on your answering machine or cell phone, never delete it! It is evidence that could assist you in proving a violation of consumer protection laws and getting potentially thousands of dollars in damages, you could be entitled to up to $1,500.00 per call. Specifically note if the call was made to your cell phone, what your cell phone number is, and why you think the call was placed using an automatic telephone dialing system, also  make note of the details of when the call was received, to what phone, etc.

 Revoking Consent

To revoke any consent Associated Recovery Systems or its affiliated entities have to contact you in an attempt to collect any debt owed to them, including revoking consent to use an automatic telephone dialing system to call your cellular telephone, please either:

  1. Tell them you have hired LAW OFFICE OF CAROL A. LAWSON, to represent you, give them our contact information and then use the Creditor Communications Log to capture information regarding debt collection calls;
  2. Send them a Cease & Desist Letter; or contact the creditor/debt collector and revoke consent with the  creditor via their website or telephone.

 

 

 

 

 

 

TCPA  Changes Affecting Telemarketing

TCPA Changes Affecting Telemarketing

What you Need to Know:

Callers cannot avoid obtaining consumer consent for a robocall simply because they are not ‘currently’ or ‘presently’ dialing random or sequential phone numbers.”

2. A called party “may revoke consent at any time and through any reasonable means.”

The FCC states that “a called party may revoke consent at any time and through any reasonable means. A caller may not limit the manner in which revocation may occur.”

The FCC also emphasized that “regardless of the means by which a caller obtains consent, under longstanding [FCC] precedent, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent.”

3.  Consent must be specific to the type of call, and type of telephone service of the number being dialed.

4. Only “the consumer assigned the telephone number dialed and billed for the call” or “the non-subscriber customary user of a telephone number included in a family or business calling plan” may consent.

However, “providing one’s phone number evidences prior express consent to be called at that number, absent instructions to the contrary.”—I got a real   problem with this part. Just because I give Google my phone number and post it on my webpage does not mean I consent for business to call and solicit me. I really hate the Google partner calls wanting to do my ads or SEO.   Wonder if this counts as a expressed revocation of acceptance of solicitation calls under TCPA ???

5. “Callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented, subject to a limited, one-call exception for cases in which the caller does not have actual or constructive knowledge of the reassignment.”

6. The FCC rejected one Petitioner’s arguments (subsequently withdrawn) that “the TCPA’s protections are limited to telemarketing calls to wireless numbers and should not require consent for non-telemarketing robocalls made with a predictive dialer.”

7. “The TCPA’s consent requirement applies to short message service text messages (“SMS” or “text message”),” as well as “internet to phone text messages,” in addition to voice calls.

8. The FCC’s 2012 “prior express written consent” rule is waived “for certain parties for a limited period of time to allow them to obtain updated consent.”

9. “'[O]n demand’ text messages sent in response to a consumer request are not subject to TCPA liability.”

10. “[C]ertain free, pro-consumer financial- and healthcare-related messages” are exempt “from the consumer-consent requirement, subject to strict conditions and limitations to protect consumer privacy.”

The FCC imposed the following restrictions and requirements regarding these messages:

“voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the customer of the financial institution;

voice calls and text messages must state the name and contact information of the financial institution (for voice calls, these disclosures must be made at the beginning of the call);

voice calls and text messages are strictly limited to the [specified purposes] and must not include any telemarketing, cross-marketing, solicitation, debt collection, or advertising content;

voice calls and text messages must be concise, generally one minute or less in length for voice calls (unless more time is needed to obtain customer responses or answer customer questions) and 160 characters or less in length for text messages;

a financial institution may initiate no more than three messages (whether by voice call or text message) per event over a three-day period for an affected account;

a financial institution must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future calls, text messages must inform recipients of the ability to opt out by replying ‘STOP,’ which will be the exclusive means by which consumers may opt out of such messages; and

a financial institution must honor opt-out requests immediately.”

The FCC also adopted the following conditions for each exempted message made by or on behalf of a healthcare provider:

voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient;

voice calls and text messages must state the name and contact information of the healthcare provider (for voice calls, these disclosures would need to be made at the beginning of the call);

voice calls and text messages are strictly limited to [certain specific healthcare-related purposes]; must not include any telemarketing, solicitation, or advertising; may not include accounting, billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules;

voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;

a healthcare provider may initiate only one message (whether by voice call or text message) per day, up to a maximum of three voice calls or text messages combined per week from a specific healthcare provider;

a healthcare provider must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future healthcare calls, text messages must inform recipients of the ability to opt out by replying ‘STOP,’ which will be the exclusive means by which consumers may opt out of such messages; and

a healthcare provider must honor the opt-out requests immediately.”

https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order-order

If your right have been violated contact our office to discuss the matter.

FLORIDA EXEMPTION STATUTES

FLORIDA EXEMPTION STATUTES

Art. 10, §4(a)(1); F.S. §§222.01, 222.02, 222.05  Homestead-160 acres outside of a municipally or one-half acre within a municipality( the exempt portion of a Homestead may be limited to $155,675.00 of equity)
Art.10, §4 (a)(2) Personal Property – $1,000 per person
F.S. §222.25(4) Personal Property – up to $4,000 per person if not claiming or receiving benefits under Florida’s homestead exemption
F.S. §121.131 Retirement benefits – Public employees – 100%
F.S. §122.15 Retirement benefits – county officers and employees – 100%
F.S. §175.241 Retirement benefits – Firemen – 100%
F.S. §185.25 Retirement benefits – Police – 100%
F.S. §222.11(2)(a) Head of Family – Disposable earnings< or =$500/week-100%
F.S. §222.11(2)(b) Head of Family – Disposable earnings>$500/week-100% unless otherwise agreed to in writing
F.S. §222.11(2)(c) Non-Head of Family – Disposable earnings>$500/week-greater of 75% or 30 x federal minimum wage
F.S. §222.13 Life insurance proceeds-100%
F.S. §222.14 Life insurance – cash surrender value/annuity contracts-100%
F.S. §222.18 Disability benefits – 100%
F.S. §222.201 Property listed in subsection (d)(10) of section 522 of Bankruptcy Code
F.S. §222.21(1) Pension money of U.S. pensioner – 3 months if needed for support
F.S. §222.21(2) Retirement or profit-sharing benefits qualified under IRS 1986 – 100%
F.S. §222.22 Prepaid Education Expense Trust Fund – 100%
F.S. §222.25(1) Equity in one motor vehicle – $1,000
F.S. §222.25(2) Health aids, professionally prescribed – 100%
F.S. §222.25(3) Interest in a refund or a credit received or to be received pursuant to § 32 of the IRS Code – 100%
F.S. §238.15 Retirement benefits – Teachers – 100%
F.S. §443.051(2) Unemployment Compensation Benefits – 100% except support
F.S. §497-413 Preneed Funeral Contract Consumer Protection Fund -100%
F.S. §620.68(2)(c) Partnership property, specific
F.S. §632.619 Fraternal Benefit Society Benefits 100%
F.S. §744.626 Veteran’s benefits – 100%
F.S. §769.05 Damages for Injury or death at work, hazardous occupations – 100%
F.S. §960.14 Crime victim’s compensation – 100%
F.S. §440.22 Workers’ Compensation
Debt Collector’s  Calling?

Debt Collector’s Calling?

Are debt collectors constantly call your home and send you threatening letters in the mail, it might be time to consider bankruptcy.   Clearwater Bankruptcy evaluates your financial situation to determine if bankruptcy is the best option for you.  Your Clearwater Bankruptcy Attorney  will explain the specifics of bankruptcy law, and help you understand how to rebuild your credit so you can get a fresh start.  Don’t live in fear with the phone off the hook – get the information and answers you need.   Debt Relief is what we do!  Come in for a Free Consolation today!

FL 2nd DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

FL 2nd DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

I don’t know about you, but, I’m seeing a trend  and it is not good for the consumer.  First the 4th DCA, then the 5th DCA and now the 2nd DCA rule Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer.    I wonder do any of these Judges know that the Creditor law firms have direct access to the payment  history and can go in and manipulate charges and how  the money is  applied?   These banks changes servicers and law firms constantly- do you have any idea  how many  people have touched your loan history?   I don’t.

The latest case is AS Lily LLC v. Harold Morgan   it was appealed from Judge Campbell in Pinellas County by The Solomon Law Firm on behalf of AS Lily.   The 2nd DCA found that  incorporation or adoption of prior servicer’s records was  allowed if the servicer verified them before using them as his own. WAMCO XXVII, Ltd. V. Integrated Electronic Environments, Inc., 902 So. 2d 230 (Fla. 2d DCA 2005).

Judge Campbell had  relied on Glarum v. LaSalle Bank Natl. Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011).

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/May/May%2008,%202015/2D14-863.pdf

 

FL 5th DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

FL 5th DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015)

US Bank’s Loan Payment History was used to establish the homeowner’s default and the amount of the alleged debt as is the case in all foreclosures.  Often the histories contain information transmitted by one or more prior loan servicers, with only the current servicer present at trial.   The question in this case was are these prior histories  inadmissible hearsay within hearsay.

For a current servicer to establish the business records exception for information transmitted by a prior servicer under FL § 90.803(6), the testifying witness must not only testify that the current servicer verified the information it received, but must also have knowledge of the prior servicers’ record keeping procedures. See Kimberly Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015).

In Kimberly Le, this Court held that a payment history was admissible where the bank’s witness testified that her company’s loan boarding process (i) verifies the accuracy of the information it received from the prior servicer and (ii) confirms that the prior servicer’s entries conformed to industry standards. Id. at p.3. Unless the witness can testify to both elements, the information transmitted by the prior servicer does not satisfy the business records exception to hearsay.

 

King v. Burwell – ObamaCare Update

King v. Burwell – ObamaCare Update

Holding: The Patient Protection and Affordable Care Act Section 36B’s tax credits are available to individuals who purchase health insurance on an exchange created by the federal government.   http://www.scotusblog.com/case-files/cases/king-v-burwell/

Adjudged to be AFFIRMED. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year.

(2) (a) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 [1] of the Patient Protection and Affordable Care Act, […]  https://en.wikipedia.org/wiki/King_v._Burwell

What this means to you.   You may keep the subsides you receive for the insurance the government is forcing you to carry.